Should freedom of expression and information take precedence over safety and/or offence in relation to net-policing

For the purposes of this essay it will be important to define the terms of reference with sufficient clarity to enable analysis. Article 10 of the Human Rights Act (HRA) 1998 defines freedom of expression as including; "freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers." The internet, by its very nature, draws the concept of freedom of expression broadly. It is too narrow to argue that freedom of speech on the internet extends solely to using it as a means to launch one's political, religious or moral polemics. It is submitted that freedom of speech as defined by Article 10, in relation to the internet, extends to any communication made across the World Wide Web ("the Web"), regardless of the size, age or locality of the audience and/or recipient(s). Similarly, freedom of information, although not specifically enshrined by the HRA 1998 is a broad concept in relation to the internet. It extends to all forms of media, song, videogames and software. With regard to safety on the internet via policing; it will be argued that "the policing of the internet is about more than just simply enforcing the law; rather, it is about regulating the behaviour of internet users in the shadow of law." However, it is sufficient for present purposes to state that 'safety' in relation to the internet, relates to the degree of censorship necessary and the degree of monitoring of web-users required. The concept of 'offence' is highly subjective, and as yet, has not been coherently given international standards/definition in relation to the internet. How and whether to define 'offence' will be discussed later.

Drawing on the definitions given above this essay will begin by outlining the arguments for why freedom of speech should be upheld at the cost of safety and the risks involved in censoring in order to guard against what may cause people offence. This will be countered with the arguments in favour of a degree of censorship and monitoring. This will include a discussion of the effect of deindividuation in cyberspace and the necessity of protecting people from themselves. However, this question cannot be examined in a vacuum, divorced of the logical implications and restraints of the reality of today's World Wide Web. This essay will therefore give consideration to whether it is, in fact possible for safety or security of the internet to take precedence over the freedom of expression and information. If so, how this should be approached.

Argument for freedom of speech/information on the internet

Arguably, the underlying feature of a free society and of free expression principles is that governments cannot impose their versions of morality through censorship of unconventional or 'bad' ideas; citizens are entitled to decide these matters for themselves; "any other answer leaves the government in control of all the institutions of culture, the great censor and director of which thoughts are good for us." In relation to the internet, the potential for this can be seen in a number of countries; Singapore, China, Korea and Vietnam, have actively sought to control their citizens' use of the internet, either by forcing users to register with governmental monitoring organizations or by directly controlling internet traffic coming into their countries through government controlled Internet Service Providers (ISPs). China in particular prevents access to foreign media sites. The implications of such government regulation are clear; lack of access to anything other than state sponsored media inhibits a citizen's ability to question the actions of his/her government or verify the veracity of reporting. In Iran, a country renowned for its harsh theocratic regime, and dubbed "the biggest prison for journalists in the Middle East", by Reporters sans Frontieres (RSF), citizens have turned to the internet to express their opinions on issues that cannot be publicly reported in Iran. The particular medium for this is the use of weblogs, of which there are an estimated 75,000.Through the anonymity and freedom that weblogs can provide, those who once lacked voices are speaking up and discussing issues that have not been aired in any other media in the Islamic world. In order to overcome the difficulties of identifying and preventing these webloggers, the government is considering replacing the internet with a country-wide intranet in order to comprehensively curb freedom of expression within the country.

Dangers and difficulties in regulating to prevent offence

Notwithstanding the fundamental argument that freedom of speech is a prerequisite for a free society as illustrated above, there is a difficulty and a concomitant danger in restricting freedom of speech even in purportedly democratic countries to prevent groups of people being offended. This is best exemplified by the restriction of 'hate-speech' on the internet. At the time of writing there were no cases involving hate-speech and the internet within the UK, however, with the current government's commitment to implementing the Incitement to Religious Hatred Bill, cases could be forthcoming. A good example of the difficulty referred to above is the case of Union of French Jewish Students and League Against Racism and Anti-Semitism v Yahoo! In this case a French court ruled that the trading of Nazi memorabilia on Yahoo's site, www.yahoo.fr "constituted an apology for Nazism and a contestation of Nazi crimes." This was because under French law the sale of goods inciting violence or racist sentiments is prohibited. In response, Yahoo! removed the auctions from its French site but refused to block access, or put warning messages on its far more popular US site. This is because hate-speech in the US does not fall outside of the protections of the First Amendment. America takes the approach that hate-speech cannot be regulated per se, but "fighting words" can be. These words are those "used in such circumstances that they will bring about substantive evils" and cause a breach of the peace, however, it would appear that the speaker of such words has to be in physical proximity . Thus, despite legal attempts at attempting to inhibit free speech, French people living in France can still access such sites. This case emphasizes the difficulties in restricting freedom of expression and information in cyberspace, due to both the cross-border element and the different jurisdictions' interpretations of what acts can incite hatred.

Although one can entirely sympathize with the plight of the applicants in the Yahoo! case, it is debateable whether the act of buying Nazi memorabilia, in fact, 'incites' racial hatred. One could argue that it is no more than the trading in something which is morally objectionable in the extreme, and thus the case represents an attempt to regulate morality as opposed to preventing harm. The danger this gives rise to is that non-public, unaccountable bodies can mandate and regulate the behaviour that they deem correct by outlawing that which they do not agree with. A similar development can be seen in the UK by the Internet Watch Foundation (IWF), an industry based, self-regulatory body supported by the UK government. This body acts as a hotline and responds to reports from internet users, by locating content that is "undesirable" (according to its own judgment) and informing all British ISPs for the removal of the content located. Akdeniz argues that there are "serious concerns for the policing role that can by played by such organizations. Privatized policing organizations are not acceptable to judge the suitability or illegality of internet content." Nadine Strossen submits, "these hotlines violate due process concepts that are also enshrined in international, regional and national guarantees around the world." The avenues of appeal from a decision by a body such as the IWF are limited leaving content providers banned or blocked and unable to continue business. Arguably this subverts the self regulating exchange of information that has been a hallmark of the internet Community.

The European Court of Human Rights has confirmed in Handyside v UK that freedom of expression extends not only to ideas and information generally regarded as inoffensive but even to those that offend, shock or disturb (Castells v Spain ). However, in spite of this, and partly in response to the problem of cross border definition of hate-speech the European Commission has issued a proposal to try and harmonize European standards of hate speech. Clearly this will not answer the question of whether the internet should be regulated, but, from a purely functional point of view, it will provide a common definition that will, at least in Europe prevent the cross-border problems as exemplified by the Yahoo! case. The proposal contains provisions directly related to the issue of jurisdiction where the offence is committed on the internet. However, it exceeds UK law by including Holocaust denial as an offence, which is not covered by English law. The prima facie difficulty here is that unless England changes its domestic law, a person could be found guilty of an offence committed on the internet which is not recognised by domestic law. This has clear sovereignty ramifications for England's relationship with the EU.

Arguments against freedom of speech/information taking precedence over safety

There are a number of interrelated arguments as to why peoples' actions on the internet should be censored and monitored which ostensibly run counter to the concepts of freedom of speech and information. They can be loosely separated into firstly, preventing internet users from committing serious crimes against one another by making initial contact over the internet, and secondly preventing internet users from engaging in illegal behaviour themselves. The theme underpinning these arguments is that under the guise of free speech and rejection of regulation of the internet, crimes can readily be committed and morally objectionable behaviour perpetuated and legitimized by the construct of cyberspace. Further, it is the very ease of finding and accessing information on the internet that increases this criminality and immorality.

Clearly there has to be a finite limit on the freedom of information on the internet, for example, in relation to the publication of official secrets over the internet. However, one could also argue that in order to protect the vulnerable from potentially serious harm by virtue of the people that they meet in cyberspace, the concept of freedom of information should be dramatically extended in a different manner to include freedom of information of user identity. This could undermine and deter a substantial proportion of criminal activity. This is particularly so in the use of internet chat-rooms in which paedophiles pose as children in order to ensnare or groom underage victims . It can also be seen in the way that the internet enables persons with depraved tastes to meet one another to engage in illegal activity, for example, the two recent cases of organised cannibalism in Germany.

Arguably, there is a tendency, both on a small and large scale towards the internet being used for morally reprehensible behaviour, sometimes tantamount to slavery and/or where people appear willing to operate outside the realms of legality. Demetriou and Silke argue that this can be attributed to a psychological state known as 'deindividuation'; they define this as a state where 'inner restraints are lost when individuals are not seen or paid attention to as individuals. The loss of restraints can lead people to behave less altruistically, more selfishly and more aggressively." Anonymity has been identified as one of the key causes. They argue that while the actual level of anonymity that internet users enjoy has diminished considerably in recent years, the perception of anonymity, or perhaps more accurately the illusion of anonymity remains very high. A common example of deindividuation in cyberspace is the incidence of illegal downloading of software, games, songs and films. This is practiced by millions of people worldwide, the vast majority of whom have some appreciation of the illegality of their actions. Further examples include the recent case of a Belgium woman who sold her baby to a Dutch couple for £10,300. Another example is the phenomenon of buying a wife on-line, whereby one can visit sites such as www.latinport.com, select a lady from their catalogue, add her to your basket, and for a fee, be given contact details.

If one accepts that there is a high degree of deindividuation present in cyberspace, it can be argued that sufficient security and monitoring of the internet is necessary to protect people from themselves and their own latent tendencies to act immorally. It is submitted one means of increasing security and at the same time minimizing incidences of illegal behaviour would be to develop a reliable technology or procedure for identifying internet users. A method which at the same time makes each and every internet user aware that they are not anonymous, that they do not take a "moral holiday" by logging on to the internet and that there are readily identifiable and evidentially sustainable ramifications for their illegal actions on the internet. Thus, in order to ensure safety it is necessary to remind people that their identities in cyberspace are the same as they are in the real world. It is submitted that this is one of the ways by which policing of the internet could legitimately function to regulate the behaviour of internet users.

Conclusion

The internet is the perfect forum for a high degree of freedom of expression, and by its very nature, freedom of information. There are clear examples of incidences where the freedom of expression existent in cyberspace has been one of the only means of enjoying this basic human right. Further, there is sufficient concern over the means by which causing offence on the internet is judged and by whom to argue that basic international standards should be reached on this issue and that governments (as opposed to unelected bodies) should be primarily responsible for the regulation of potentially offensive material on the internet. For these reasons it is submitted that for present purposes, freedom of expression should take precedence over the causing of offence when discussing activities that are within the realms of legality. However, by reason of the very real and relatively prevalent examples of illegality conducted through the internet, combined with the effect of deindividuation, it is submitted that freedom of speech should not be given precedence over ensuring safety on the internet. This is in no small part due to the fact that the internet is not the only means of expressing one's freedom of speech or information in a democratic society.

BIBILIOGRAPHY

Cases

American Booksellers Assocation v Hudnut [1985] USA Court of Appeals Seventh Circuit, at 330.

Castells v Spain [1992] 14 E.H.R.R. 445

Handyside v UK [1976], 1 E.H.R.R. 737.

Union of French Jewish Students and League Against Racism and Anti-Semitism v Yahoo! Tribunal de gGrande Instance de Paris, Interim Court Order, 20 November 2000.

Paper Articles and Texts

Demetriou, C and Silke, A, 'A Criminological 'Sting'', [2003] Brit. J. Criminol 213

Wall, D, [2000], The Internet, Law and Society, London, Longman

From: Crime and the Internet, ed. By Wall, D, [2001]. London, Routledge

- Akdeniz, Y, 'Controlling Illegal and Harmful Content' in Crime and the Internet. p.113
- Wall, D, 'Maintaining Order and Law on the Internet', p.167

Web Articles

Alavi, N, 'Freedom in Farsi Blogs', www.guardian.co.uk, Monday December 20, 2004

Caden, M.L. and Lucas, S.E. [1996] 'Accidents on the Information Superhighway: on-line liability and regulation', Richmond Journal of Law and Technology, 2, 1, www.richmond.edu/¬jolt/v2il/caden_lucas.html

Hearst, D 'Special Report: Free Speech on the Net', www.guardian.co.uk, July 24, 2000

Professor Noveck, B, S, [2003] 'Hate Speech, Incitement to Violence and Racism on the Internet', www.selfregulation.info